Public Documents Regarding the Trial of Vernon Hershberger

STATE OF WISCONSIN CIRCUIT COURT, BR. 3 SAUK COUNTYSTATE OF WISCONSIN,Plaintiff,v.VERNON HERSHBERGER,Defendant.Case No. 11 CM 696Defendant’s Supplemental Reply Brief in Response to the State’s First Supplemental Motions in LimineINTRODUCTIONThe present briefing on the complex exhaustion of remediesissue and multi-prong tests strays from the practical evidentiary questions which will occur at trial. The Defendant, Vernon Hershberger, intends to present evidence about the nature and quality of the substance at the heart of this lawsuit – raw milk produced at this farm. It is absurd to think that the defense will not be able to introduce any evidence on what he was producing, why the members wanted to buy it and why on the day of the raid, the State inspectors destroyed 2000 pounds of the defendantsraw milk without any factual basis to find that it was harmful to the public in any way. This defense evidence is essential for him to have a fair trial. Although the milk and milk products have been consumed by human beings ever since civilization began roughly 8,000 years ago, the jury will not likely have any firsthand knowledge of what raw milk is and why some people prefer it to pasteurized milk. Without this context, the defendant has little chance of receiving a fair trial.At the December hearing, discussion over whether such evidence could be presentedtransitioned into a debate overreligious freedom. Specifically, the Court was informed that Mr. 2Hershberger had not contested the formal findings issued by DATCP in its summary holding order after the raid. The findingsthat his products were “misbranded” and “adulterated,” among other findings, went unchallenged because initiating this conflict would have violated Mr. Hershberger’s sincerely held religious belief against initiating conflict.The freedom of religion issue remains of paramount importance to Mr. Hershberger. But regardless of how the Court rules on this complex but narrow issue, it still must allow Mr. Hershbergerthe right to present background and contextual evidence about the raw milk and products from his farm. If Mr. Hershberger is silenced from telling the jury what his farm produces about his product, and they are told simply that the food was ‘adulterated and misbranded’ the defendant’s right to present a defense will be eviscerated.ARGUMENTI. Mr. Hershberger Must be Allowed to Present Evidence Describing the Product that Led to the Charges in this Case.It appears from the State’s latest submission that it wants the court to prevent theDefendant from introducing any proof about the nature of the product that Mr. Hershberger was producing forthe members. The State’s current motion if granted would prevent the jury from learning the entire context of Mr. Hershberger’s farming operation, including why he did not need a milk producer’s license, a dairy plant license or a retail license.Mr. Hershberger has been charged with violating food safety laws. The milk and milk products are at the center of the case and the jury needs to know what is at the heart of the dispute. The State’s approach appears to be that any milk or milk products that are not pasteurized are automatically “misbranded” and “adulterated.” The State seeks to prevent the introduction of any evidence of how that the milk and milk products at the Hershberger farm were produced and stored. This motion must be denied. 3Before a jury can decide beyond a reasonable doubt whether Mr. Hershberger should be convicted of all four charges it needs to understand the context. What was in the bulk milk tankand the products in the cooler? Where did these food products come from, how were they produced and stored, and why did DATCP conclude that the milk was “misbranded” and “adulterated”? While the State would prefer to try the case in a vacuum, the jurymust be given a complete picture so that it can make a fully informed decision. The United States Supreme Court has held that parties must be given have the opportunity to tell a complete story. In Old Chief v. United States, 519 U.S. 172, 188 (1997), Justice Souter, wrote:[T]here liesthe need for evidence in all its particularity to satisfy the jurors' expectations about what proper proof should be. …If [jurors'] expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party.Justice Souter went on to add, with respect to omitting pieces of the story:The use of witnesses to describe a train of events naturally related can raise the prospect of learning about every ingredient of that natural sequence the same way. If suddenly the prosecution presents some occurrence in the series differently, as by announcing a stipulation or admission, the effect may be like saying, “never mind what's behind the door,” and jurors may well wonder what they are being kept from knowing. A party seemingly responsible for cloaking something has reason for apprehension, and the prosecution with its burden of proof may prudently demur at a defense request to interrupt the flow of evidence telling the story in the usual way.Id. at 189.The State apparently wants the court to decide contested facts concerning the nature of the milk products in the bulk tank and the cooler. The State asks the court to rule as a matter of law that these products were “misbranded” and “adulterated” simply because a biased DATCP agent put yellow tags on these products on the day of the raid. If these premature and inaccurate“findings” cannot be challenged in any way and the jury is told without context that the milk 4products as a matter of law were “misbranded” and “adulterated.” then the trial will be overbefore it starts. The jury would convict him on all counts for no responsible juror would have another choice in the face of a farmer intentionally selling poisoned, misbranded food to unwaryconsumers.II. The Exhaustion of Remedies Doctrine Does Not Preclude Mr. Hershberger From Putting on Evidence About the Safety of His Milk.The exhaustion of remedies doctrine does not apply to this case. The State’s motion in limine seeksto exclude the testimony of expert witnesses regarding facts set forth in the holding order. The State’s motion asserts that this evidence is not relevant but it does not mention the exhaustion of remedies doctrine. At the final pre-trial conference, the Court questioned whether the exhaustion doctrine might apply and the State responded in the affirmative, asserting for the first time that Mr. Hershberger lost his opportunity to challenge the State’s version of the facts by not doing so in an administrative proceeding. The State’s position appears to be that Mr. Hershberger’s failure to initiate administrative proceeding means that any facts found prior to that untaken proceeding cannot be challenged. The State is wrong for several reasons.First, the administrative proceeding was never available to Mr. Hershberger, because initiating an administrative proceeding would have required him to violate his religious convictions. The State’s Response Brief cites actions taken in connection with this criminal proceeding to imply that Mr. Hershberger’s beliefs are not sincere, painting the portrait of a litigious man who was too lazy to bother with an administrative proceeding. However, the question of whether Mr. Hershberger’s beliefs are sincere is a question of fact requiring an evidentiary hearing before the fact finder. Further, Mr. Hershberger’s religious beliefs make a distinction between defense of criminal charges and initiating civil or administrative proceedings, so that he may participate in the latter but not the former.5When the factual evidence is presented at an evidentiary hearing, it will be shown that Mr. Hershberger’s sincere religious beliefs make the distinction between civil actions (in which he has not participated, to his temporal detriment) and criminal actions (in which his sincerelyheld religious convictions permit participation), as set forth in his affidavit. This should not be surprising to the State, because the law makes a similar distinction between civil and criminal matters, affording more protection and process to defendants in connection with the latter. The State’s effort to depict Mr. Hershberger as an active participant in litigation rings very hollow when the only active involvement it can point to occurred in the context of this criminal proceeding.Further, even if the doctrine of exhaustion of remedies were applicable, courts have long held that the doctrine is not to be applied “in a rigid, unbending way.” State ex rel. Mentek v.Schwarz, 2001 WI 32, 242 Wis. 2d 94, 101-02, 624 N.W.2d 150, 154 (citations omitted). Consideration must be given for situations where it would be unfair to apply it. State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 101-02, 624 N.W.2d 150, 154 (citations omitted); accord Lamar Cent. Outdoor, LLC v. Wisconsin Dept. of Transp., 2008 WI App 187, 315 Wis. 2d 190, 202, 762 N.W.2d 745, 751, citing Trager, 118 Wis.2d at 214, 346 N.W.2d 756.This is just such a situation. Courts are to exercise discretion in determining whether to apply the doctrine, weighing the advantages and disadvantages of applying the doctrine in a particular case, including the litigant’s need for judicial review and the public’s interest in the sound administration of justice. Id. It is difficult to think of any context in which a party’s need for judicial review and the public’s interest in justice is stronger than in a criminal proceeding, where the defendant’s liberty is at stake. Applying the exhaustion of remedies doctrine to prevent a criminal defendant from 6presenting evidence to defend himself against the State’s claims would certainly not promote justice.The State’s Response Brief does not address this flexibility of the exhaustion of remedies doctrine. Instead, it attempts to distinguish Mentek as “not a freedom of religion case. . . . [I]t does not provide any guidance on how to apply the strict freedom of religion test set out in Miller. . . .” (Resp. Br. At 5.) This attempt to distinguish Mentek is puzzling because exhaustion of remedies and free exercise are two separate and distinct doctrines. That Mentek did not concern freedom of religion is inapposite in the context of considering application of the exhaustion of remedies doctrine here. The State’s attempt to distinguish Mentek on this basis renders its argument not only confusing, but irrelevant. In any event, the flexibility encouraged by the Mentek court should be exercised here to decline to extend the exhaustion of remedies doctrine to prevent a criminal defendant from presenting evidence in his defense. Finally, the administrative proceeding could not have provided Mr. Hershberger any remedy because the yellow tags were already broken and food had been taken by its owners by the time he was served with the formal order. At trial the defense will prove that Mr. Hershberger forcefully broke the yellow tags on the food lockers the day after the raid. Thus his actions in breaking the seals and allowing the members to take possession of their property occurred well before he was served with the official order with its notice of appeal rights that ispivotal to the State’s insistence that the order’s “findings” are binding. Therefore, the yellow tagsand the preliminary handwritten conclusions of DATCP employee Jackie Owens did not have the full force of agency law or provide the due process protections required for a criminal defendant whose liberty interests are at stake.7Now facing criminal charges, Mr. Hershberger has only one remedy – to defend against the four criminal charges brought by the State. In order to do that, Mr. Hershberger must be afforded the opportunity to present evidence about the products his farm produces and how they are produced even if they may conflict with the vague and generic “adulterated” and “misbranded” labels later given in DATCP’s subsequent holding order. The initial holding order issued by DATCP employee, Jackie Owens and the findings of ‘misbranding” and “adulteration” were made on the spot with no due process or objective data to confirm their reliability. These “facts” cannot be assumed true in the context of a criminal case, where the State bears the burden of proof. III.Mr. Hershberger’s Religious Beliefs are Sincere and Have Been Burdened by the Requirementthat He Initiate an Administrative Proceeding.The State recognizes that the compelling state interest/least restrictive alternative testmust be applied here. Pursuant to the elements set forth in State v. Miller, 202 Wis. 2d 56, 549 N.W.2d 235 (1996), once Mr. Hershberger shows that he has a sincerely-held religious belief burdened by application of the state law, it becomes the State’s burden to prove that the law is based on a compelling State interest which cannot be served by a less restrictive alternative. Mr. Hershberger did demonstrate that his sincerely-held religious belief is burdened by application of the state law requiring him to initiate an administrative proceeding in order to challenge the State’s holding order. The State’s Response Brief does not describe any evidence it intends to present to refute either the sincerity of his beliefs or the burden its procedure has placed on him. Thus, it is the State’s burden to demonstrate that preventing Mr. Hershberger, a criminal defendant, from presenting evidence which may challenge the premise of Jackie Owen’s post-raid hold orderis the least restrictive alternative. The State ignoresthis key issue in its Response Brief arguing instead that the defendant’s beliefs are not sincere. 8A. Sincerity is a question of fact; the State presents no evidence in support of its position that Mr. Hershberger’s religious beliefs lack sincerity. The sincerity of Mr. Hershberger’s beliefs is a question of fact. United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733 (1965) (addressing the sincerity of religious exemptions from military service); United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996); Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 90 (D. Mass. 2005). The Second Circuit Court of Appeals articulated the difficult factual finding that must be made in determining the sincerity of religious beliefs:Sincerity analysis is exceedingly amorphous, requiring the factfinderto delve into the claimant's most veiled motivations and vigilantly separate the issue of sincerity from the factfinder's perception of the religious nature of the claimant's beliefs. This need to dissever is most acute where unorthodox beliefs are implicated. There, the factfinder's temptation to merge sincerity and verity is as great as the need to guard against this conjugation. Accordingly, assessing a claimant's sincerity of belief demands a full exposition of facts and the opportunity for the factfinder to observe the claimant's demeanor during direct and cross-examination. A more cursory evaluation raises the spectre that the sincerity issue was decided by reference to the factfinder's perception of what a religionshould resemble.Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984).If the State is unwilling to stipulate to the sincerity of Mr. Hershberger’s religious beliefs, a factual determination must be made before a decision on the religious freedom issue may be rendered. Justice requires that, unless this fact is found in Mr. Hershberger’s favor, an evidentiary hearing be held. Consistent with the affidavit testimony presented in connection with this briefing, the evidence will show that Mr. Hershberger’s beliefs are sincere. Without factual support, the State implies that Mr. Hershberger’s stated beliefs are a pretext for avoiding an administrative proceeding. The State’s only basis for this conjecture is the fact that Mr. Hershberger has participated in this criminal proceeding. The State’s position 9appears to be that Mr. Hershberger eschewed the administrative procedure available to him in favor of engaging in this criminal proceeding. If this is not the State’s position, it is not clear what the State is suggesting by impugning Mr. Hershberger’s motives in not initiating the administrative proceeding. By citing to actions Mr. Hershberger has taken in the context of this criminal proceeding, the State ignores that part of Mr. Hershberger’s affidavit in which he affirms and states that his sincerely-held religious convictions prevent him from being the aggressor in a civil or administrative action, while allowing him to defend himself against criminal charges. (Hershberger Aff. ¶¶ 6 and 8.) Mr. Hershberger affirms and states, inter alia, “I have been charged with a crime, so am necessarily engaged in defending myself and am not initiating conflict.” Id. ¶ 8. Every action he has taken is consistent with the beliefs affirmed in his affidavit, as evidenced by the fact that he allowed a civil judgment to be taken without his involvement in the case (Id. ¶ 7), while he has been involved in this criminal proceeding from the beginning. The distinction between civil and criminal proceedingsis hardly a novel concept, asthe law also distinguishes between these two types of actions, providing greater protection to defendants in connection with criminal proceedings than civil. Whether the State understandsthe distinction made between civil/administrative and criminal proceedings under Mr. Hershberger’s belief system (or, indeed, the American justice system)is irrelevant. Sincerity of religious beliefs does not depend upon those beliefs being objectively true or even acceptable, logical, consistent, or comprehensible to others:The objective content-based approach of the early cases has been replaced by a more subjective definition of religion, which examines an individual's inward attitudes towards a particular belief system. In United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944), the 10Court noted that the availability of a free exercise defense cannot depend on the objective truth or verity of a defendant's religious beliefs. See also Thomas v. Review Board, 450 U.S. 707, 714, 101 S.Ct. 1425, 1429, 67 L.Ed.2d 624 (1981) (“religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”). Instead, courts will investigate an adherent's sincerity and will then invoke free exercise analysis where a belief is asserted and acted upon in good faith. Int'l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 439 (2d Cir. 1981). Whether the State appreciates the distinction made between civil proceedings and criminal proceedings is not the test to be applied to Mr. Hershberger’s constitutional rights. He clearly sees a distinction between them, as does State law, rendering ineffectual the State’s attempt to impugn his motives by citing his participation in this criminal proceeding.As attested in his affidavit, Mr. Hershberger could not initiate the administrative proceeding without violating his sincerely-held religious beliefs. He may, however, defend himself in this criminal proceeding, where his liberty is at stake and the truth is on trial. B. Mr. Hershberger’s sincere beliefs are burdened by the requirement that he initiate an administrative proceeding in order to challenge the state’s order.The State also arguesthat Mr. Hershberger’s beliefs regarding non-aggression are not basic tenets, principles, or dogmas of his belief system. The only facts cited by the State in support ofits supposition on this point are the actions taken by Mr. Hershberger in this criminal proceeding. The centrality of non-aggression to Mr. Hershberger’s belief system is outlined in detail in his affidavit. Among other things, he attests and states as follows: “I cannot be the aggressor in a lawsuit. I could not request the hearing provided by the administrative rules and referenced on the State’s holding order even though the findings of fact in the order were incorrect, because it would have been tantamount to suing the State and would have violated this Scriptural prohibition [set forth in ¶ 5] on initiating conflict.” (Hershberger Aff., ¶ 6.) He provided evidence 11of his adherence to this in civil actions in paragraph 7 of his affidavit, and explained in paragraph 8 that he may defend himself in a criminal action. Yet, the State insists that the fact that Mr. Hershberger has participated in this criminal proceeding demonstrates that his beliefs are not substantially burdened by requiring him to initiate an administrative proceeding. The clear distinction made between the two types of proceedings demonstrates that the burden of participating in the administrative proceeding is significant to Mr. Hershberger. While he is also clearly burdened by participating in this proceeding, the central tenets of his belief system permit him to do so. C. There is no compelling state interest in preventing a criminal defendant from challenging the State’s factual claims solely because he did not do so in an administrative proceeding. The State’s Response Brief mainly focuses on the sincerity of Mr. Hershberger’s beliefsand barely addresses the State’s interest in requiring future defendants from contesting all administrative proceedings as means of later defending themselves in a criminal case by producing truthful, relevant evidence. The State only arguesthat “there is a compelling State interest in allowing [sic – forcing] individuals to appeal an agency order.” (Resp. Br. at 5.) In support of this proposition, the Response Brief quotes a case regarding the exhaustion of remedies doctrine without developing how that case supports the compelling state interest prong of the religious freedom test or, indeed, applying it to this case at all. Id.Without a clear State interest to force the initiation of moot administrative proceedingsit is difficult to apply the “least restrictive alternative” test. The least restrictive alternative test means what it says – in order to prevail on a religious freedom claim, the State must show that its proposed restriction on religious liberty is the least restrictive alternative to accomplishing the aims of the underlying statute or rule. If a less restrictive alternative is available to accomplish 12the state’s aims, the individual cannot be required to violate his conscience in order to preserve his rights to a criminal defense. Having shown that there is a less restrictive alternative available to preserve the state’s interest in administrative process and judicial economy, Mr. Hershberger cannot lose the right to present evidence on what his farm produces and why his members believe it is preferable to pasteurized milk products.IV.The Privilege to Protect Another’s Property Under Wis. Stat. § 939.49 Does Not Apply Only to the Use of Physical Force.Mr. Hershberger had a right to protect the property of the members from suffering the same fate as the destroyed milk in the bulk tank. That milk was wholesome food before DATCParrived on June 3, 2010, but “adulterated” with dye by the time they left. The Defendant had every reason to believe that if he did not act immediately, the rest of the food that he worked so hard to provide to his members would suffer a similar fate. Were his actions reasonable and justified under the totality of the circumstances? That is for the jury to decide.The State wrongly impliesthat in order to invoke the privilege to protect property, Mr. Hershberger would have needed to use violent physical force against Jackie Ownen’s as she placed the tags on the coolers, rather than the equally physical but less forceful action of removing the tags the next day to allow the members to retrieve their dairy products. The statute provides, in pertinent part, as follows: “A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property . . . .” Wis. Stats. § 939.49(2). The statute also calls for the least amount of force necessary to effectuate protection of property, providing the privilege for “[o]nly such degree of force or threat thereof . . . as the actor reasonably believes is necessary to prevent or terminate 13the interference.” Wis. Stat. §§ 939.49(1) and (2). Therefore, the fact that less force than necessary was used by Mr. Hershberger is not a bar to invoking the privilege; indeed, it is a prerequisite to invoking it.While the statute does privilege a person to “threaten or intentionally use force against another,” it does not require the person to threaten or intentionally use physical force in order to invoke the privilege. In the common law and case law going back over a century, it is well accepted that force “does not always mean physical violence.” State v. Lewis, 113 Wis.391, 89 N.W. 143 (1902). In fact, “The law can draw no line between the different degrees of force … So, in burglary, an entry into the building, obtained by fraud, is deemed a forcible breaking, though accompanied by no actual force or violence.” Id. (citations omitted). The United States Supreme Court recently cited the Black’s Law Dictionary definition of force as follows:“[p]ower, violence, or pressure directed against a person or thing.” Johnson, 559 U.S. at 1270. This definition of force certainly would encompass the actions at issue in the holding order charge. Mr. Hershberger used force by virtue of tearing off the tags. It makes no differenceif he shot the tags to pieces with a shot gun or had sufficient strength to force them off with his bare hands. His actions were without question a volitional act that required an affirmative action which was just as strenuous and forceful as pulling a trigger. It was an act of “force” just asdirect as if he had pushed Ms. Owen’s hands away from the locker and grabbed the food.The state also argues that the Defendant has no defense of property privilege because the State’s conduct was not “tortious.” But that again is a jury question. Tortious conduct is defined as a “wrongful” act which certainly includes the destruction of property. See Black’s Law Dictionary (9th ed. 2009). Following the raid and the unwarranted destruction of all the milk in his bulk tank, Vernon Hershberger had a reasonable belief that the rest of the food would also be 14either destroyed on the spot, taken from the farm or left to spoil. He witnessed a DATCP agentwithout warning or explanation intentionally destroyed 2,000 pounds of fresh wholesome milk. The question for the jury is whether Vernon Hershberger’s belief wasreasonable.CONCLUSIONMr. Hershberger needs to be able to present evidence in his defense, even if that results in a challenge to the legalistic and unfounded “findings” in an after-the-fact administrative order that the food from his farm was ‘adulterated and “misbranded.” It is key to his defenses in the entire case. The jury needs to understand the context of this case to explain why DATCP acted and why he reacted to protect property under his care from imminent destruction. Moreover, he took action to protect the property before he received the administrative order outlining his appeal rights.Since the State does not concede the sincerity of his beliefsto refrain from filing an administrative challenge, an evidentiary hearing must be conducted to determine whether they are sincere. Alternatively, the court may determine that sincerity is not relevant or may assume sincerity of belief arguendo and apply the free exercise analysis to whether Mr. Hershberger isbound by these “findings” and precluded from presenting any evidence in his defense on the nature of the food at issue. If the court chooses this path, it should find that the exhaustion of remedies doctrine does not preclude a criminal defendant from presenting a defense, either because there is a less restrictive alternative available or by exercising its discretion in not rigidly applying the doctrine of failure to exhaust administrative remedies against a criminal defendant.Mr. Hershberger’ssincerely-held religious beliefs work together with due process and the exhaustion of remedies doctrine to bode in favor of a finding that he may present evidence to refute the factual findings contained within the holding order at the heart of the State’s case 15against him lest those facts become part of the record of this case without ever having been adjudicated.Respectfully submitted this 8th Day of March, 2013./s/ Glenn C. Reynolds_______________________________Elizabeth Gamsky Rich & Associates SCMill Street Transfer Building435 E. Mill StreetPlymouth, WI 53073T: 920.892.2449F: 866.623.4338erich@rich-law.comGlenn ReynoldsState Bar No. 1017065Reynolds & Associates407 E. Main St.Madison, WI 53703T: 608.257.3621F: 608.257.5551greynolds@reynlaw.netAmy M. SalbergState Bar No. 1025449Salberg Law, LLC305 N. 7th Avenue, Suite AWest Bend, WI 53095T: 262.353.9556amy.salberg@salberglaw.com